Hate The Crime And The Criminal ?

If the verdict on Yakub Memon threw open a debate on death penalty, the recent judgment on the release of Rajiv Gandhi’s killers begs a dialogue on life imprisonment. After all, how long is long enough

On 2 December, the Supreme Court put an end to the Tamil Nadu government’s efforts to release the seven convicts involved in the killing of former Indian prime ministerRajiv Gandhi. In a majority judgment, the fivemember judge headed by former chief justice HL Dattu, upheld that life imprisonment is “for life” and that no remission can be granted by “putting the interest of the nation in peril”.

It also observed how cases involving the assassination of “national figures of very high status” come within the category of “internal or external aggression”. “I have not read the judgment yet, so I cannot comment on this,” says Anup Surendarnath, former deputy registrar at Supreme Court and professor at National Law University (NLU), Delhi. “But, generally, such trends might result in Sessions courts pronouncing more death sentences, which could later be commuted to life till death by higher courts. This aspect is worrying for all those are fighting against the death penalty as a mode of punishment in India.”

Ever since the apex Court upheld its death penalty verdict on Yakub Memon, one of the accused in the 1993 Mumbai bombings, there have been intense debates on death penalty as a mode of punishment. Perched on the ‘rarest of the rare’ clause, it has been invoked in the context of ‘serious crimes’ such as terrorism. As a result, what was once the rule in British colonialIndia, has now become an exception. Life imprisonment, meaning a life behind bars until death, became the common punishment. Under the category of ‘maximum punishment’ for committing the ‘most horrific of crimes’, it was seen to be benign in comparison to the harshness of death penalty. But the dilemmas around life imprisonment and its variants remained.

Questions on the nature and extent of life imprisonment were raised as early as 1961. In a habeas corpus filed by Gopal Godse, brother of Nathuram Godse and co-conspirator in the assassination of Mahatma Gandhi, Gopal had pleaded to be set free since he had served an aggregate of 20 years in jail, including a period of 2963 days when he was out on parole.

Although the State, in its counter-affidavit, conceded that the accused had earned the days that were granted to him for parole, it asserted that this alone would not entitle him to his release. Further, it stated that these days cannot be added to the number of days he had spent in prison. Supporting the affidavit filed by the State, the Supreme Court turned down Godse’s petition stating that life imprisonment meant prison until death while maintaining that the executive reserved the right to alter sentences.

Thus, the decision to free a prisoner after he or she has served a decade or more in prison is hinged on the judiciary and the executive. It is in this interesting scenario that the Supreme Court has thwarted Tamil Nadu’s efforts in releasing the accused. Stating that the executive’s say would mean a decision in consultation with the government at the Centre, the Supreme court stated that the “State has no suo motu power to grant remission”.